When applying for Indefinite Leave to Remain, the Home Office assesses your intention to make the UK your permanent home. One method to measure intention, is through your total absences within the recent qualifying period. The Home Office would look at several aspects:
- How many trips have you taken outside the UK?
- Did you return after a short break
- Did you have valid leave upon leaving?
- Did you apply for leave to return within a short time of leaving the UK?
No more than 180 days absent within a 12 months’ period
The Home Office place a strict 180 days’ limit on any 12 months’ period throughout the 5 qualifying years, and when asked to exercise discretion are often reluctant to do so. The reason for this reluctance is partially due to the Home Office’s own view that the 180 days’ threshold is already a generous one.
Absences exceeding 180 days
Whilst most are aware of the Immigration Rules and requirements, unexpected events can cause planned trips to overrun. The Home Office may exercise discretion to disregard certain excessive absences due to ‘Serious or Compelling Reasons’ such as:
- serious illness of the applicant or a close relative
- a conflict
- a natural disaster, for example, volcanic eruption or tsunami
Our successful case
Here at QC Immigration, we have experience with complex cases where certain legal requirements are not met. For example, we have recently requested the Home Office to exercise discretion on a refusal of Indefinite Leave to Remain (hereinafter ILR) of a client who had applied after spending 5 years in the UK under Tier 2 (General) visa. Below, is a summary of the facts and the challenges faced:
The client approached us after he had applied for ILR on his own and was refused due to absences of 184 days in the most recent 12 months’ period, exceeding the limit.
We lodged an Administrative Review to the Home Office, drawing attention to the client’s nature of work which required frequent travel abroad. Furthermore, we explained the unavoidable medical treatment which resulting in late departure back to the UK. We argued that the Home Office had failed to exercise discretion given the marginal 4 days of excessive absences due to exceptional and compelling circumstances. We also supported the client’s local MP in escalating the matter to the relevant Home Office department. The Home Office was initially reluctant to withdraw their decision. However after relentless petitioning and legal arguments, our client was finally granted Indefinite Leave to Remain status.
This experience illustrates that the Home Office adopts a strict approach when dealing with absences over the limit. Nevertheless, excessive absences due to ‘Serious or Compelling Reasons’ may be accepted with strong evidence and robust legal arguments.
If you are planning your Tier 2 route towards Indefinite Leave to Remain, call us on 0203 637 8633 or email info@qc-immigration.com to discuss further with our Tier 2 Specialist Lawyers.
Home Office resources:
https://www.gov.uk/indefinite-leave-to-remain
